In open-records audit, 4 towns refuse document request

GRAND FORKS — When the Grand Forks Herald randomly audited 10 small towns in an open-records search earlier this year, six provided records while four chose to not comply with state laws.

Two towns — Forest River, N.D., and Middle River, Minn. — never responded, despite numerous phone calls, emails and messages from reporters.

A city clerk in Brooks, Minn., declined to provide the records and said she did not have enough time. The City Council, she said, told her “they would just as soon have me not do it.”

A clerk in Aneta, N.D., said the City Council decided it would not “be of any value for us to send them over” because the town is so small.

Open records laws dictate that public officials must turn over public documents within a timely manner to anyone who requests them. If they are unable to supply the documents, those public officials must notify the requester why the documents are not available or give a time frame for when they can provide the documents.

To Grand Forks Herald publisher Korrie Wenzel, it was a disappointing experiment.

“In this day and age, when we talk so much about open government and transparency, it’s unbelievable that we are unable to obtain even basic documents from 40% of the towns we asked,” Wenzel said. “It’s unsettling.”

Stephanie Dassinger, deputy director at the North Dakota League of Cities, said she is not surprised. Short staffing leads to longer wait times in small communities and contact information changes often, making it harder to determine who is handling the requests and how to reach them.

The genesis for the audit came in 2018, when a small town in northern Minnesota failed to provide records in the wake of a controversy between a member of the City Council, a city employee and a reporter from a weekly newspaper.

At a city meeting in Roosevelt, Minn., the former councilman and city clerk allegedly threatened the reporter. When the Grand Forks Herald began to cover the story, city officials did not respond to repeated phone calls or a request for city records.

Every Roosevelt City Council member was voted out of office during the November election and the councilman specifically involved in the controversy resigned, stating irritation with media persistence.

New Roosevelt Mayor Gerald Landby — who took over after the controversy — said he was unsure how to respond to the public records request because new city officials could not find copies of meeting minutes or a budget when they took office. He said former officials dropped off a big box of miscellaneous receipts, but did not seem to have any official records. He was working to piece together a city budget based on incoming bills and previous bank statements.

It prompted the Grand Forks Herald to wonder: Is Roosevelt’s civic disorganization and lack of response to record requests unique? Or is it a widespread problem in towns of similar size?

In June, the Grand Forks Herald placed in a hat the name of each town in the region of a size similar to Roosevelt — between 100 and 350 residents — and, in the presence of a notary, drew five towns from Minnesota and five from North Dakota.

They then requested these communities produce their last six months of meeting minutes and the last three years of city budgets.

In North Dakota, Petersburg, Edinburg and Hoople all produced the documents. In Minnesota, Lake Bronson, Grygla and Beltrami also returned the requested information to reporters. While some of the towns took longer than others, all officials from those communities provided the information to reporters in less than five weeks.

Dassinger said the issue could be related to staffing.

For large public organizations or cities, there often are designated media contacts to handle records requests; in most small towns, the requests are handled by city clerks or auditors.

Dassinger said many of these positions in the smallest towns are part time, which could contribute to the lengthy amount of time some cities took to respond to requests.

Steve Andrist, executive director for the North Dakota Newspaper Association, said small communities may skirt records requests because they think “sometimes it’s a bother, they’re busy and they just don’t want to have to deal with it.”

“Sometimes, I think people feel intimidated by requests and they might try to avoid them because it puts them in an uncomfortable situation,” Andrist said. “But the bottom line is, when you accept a job or elected position or anything else that is a service to the people — that’s part of your job.”

Another problem encountered by the audit was finding accurate contact information for city leaders. Most counties list contact information for city and township officials on county webpages, but after the audit, reporters weren’t sure all of the numbers were accurate or up to date.

Dassinger said it’s sometimes a challenge for small communities to publish or update contact information.

“Generally, the people living in the city, they know who their elected officials are, so they know how to get a hold of them,” she said. “Unfortunately, there’s not a great way for a city with limited resources to make that contact information available publicly.”

That often was the case with the audit.

In Petersburg, N.D., reporters searched online and found the phone number of the mayor’s husband. When he answered, the reporter requested he leave a message with the mayor. The mayor called the following day and supplied the phone number of the city clerk. The reporter was then promptly emailed the requested documents.

It was a circuitous process that worked, but the requests didn’t always end so well.

When seeking records from Forest River, N.D., a reporter left five voicemails at a phone number for the city clerk that was listed by Walsh County. The reporter also left voicemails at phone numbers for the mayor and each of the City Council members. There was no response.

The same happened in Middle River, Minn. A reporter left three voicemails and seven emails for the administration office, but only heard back once. The clerk replied in an email: "Sorry, I have been very busy, I will try and get to you by the end of next week." That was on Aug. 21, but when the reporter checked back two weeks later there was no further reply.

In Brooks, Minn., the city clerk said she was busy, and asked the reporter to send the request via email. When the reporter called back to check on the request, she said “I just don’t have time to do it. I spoke with the council on it and they’d just as soon have me not do it.”

In Aneta, N.D., the clerk said during a follow-up call that she had talked with the City Council and they decided not to send the records.

“We’re just so small and they don’t think it would be of any value for us to send them over,” she said.

Andrist said he was disappointed that clerks and councils would choose to not send their records.

“Even in small communities almost everything they have is electronic,” he said. “It's hard for me to imagine even a small town now that doesn't use electronic or computerized records. So if they have any filing system whatsoever, they ought to be able to go to their minutes file and just simply attach them to an email and they've complied with the law. So it's not really an onerous thing for them to do.”

The state of North Dakota issues opinions to determine if an organization violates an open records or meetings law, Attorney General Wayne Stenehjem said. Requests for opinions can be made by anyone online, which Stenehjem said is one of the most accessible methods of enforcement in the country.

The Attorney General’s Office sends a copy of the complaint to the organization that is accused of the violation and offers the entity’s representatives a chance to respond. The full process generally takes about four to six months.

Organizations that violate the open records or meetings laws have seven days to follow corrective actions outlined in the opinion. Stenehjem said he’s never had an organization refuse to follow through with the corrective actions. He said he takes into account the size of the organization and how many employees are available to assist with a records request.

“The law applies the same regardless of size,” Stenehjem said. “... One of the big issues that comes up when you have a township is they might have one part-time person who is a volunteer and getting them to recognize we have to accommodate these kinds of things. I’ve done a couple of opinions where you’ve got some guy, in one case he was a farmer, and maybe the office is only open for one morning every other week and he was in the middle of harvest. I recognize that there are just extenuating circumstances, especially for those small ones, but for all of them, the bigger they get, the less leeway I give them on delays.”

Stenehjem said he issues about 20 opinions a year and is proud to uphold public records so strongly. He advised the Grand Forks Herald to file a request for opinions on the North Dakota towns that didn’t provide records.

Wenzel said the newspaper plans to pursue action through the Attorney General’s Office.

“But really, think about what it’s going to mean,” Wenzel said. “We requested public documents in June and we gave these towns four months to respond. Some chose not to. So if we have to wait another four months, it means we’ll end up waiting up to eight months before we can get any kind of resolution on obtaining documents that should have been sent to us a week or two after we requested it.

“And we brag in this state about open government?”

Stenehjem reminded North Dakotans that public records are not privileged information only to be seen by public officials.

“The records that the state has, and that the political subdivisions have, belong to the citizens, not the person who happens to be in office at that time,” he said. “And the same is true of meetings. They are the meetings of the people and for the people and they’re entitled to know what’s going on.”

Stenehjem said he feels North Dakota has one of the strongest public records laws in the country and that violations are thoroughly reported and enforced.

“When you consider, there are hundreds in any given week — hundreds of meetings that are going on with townships, school boards, county commissions, city councils, state government agencies — I mean there are just hundreds of meetings in a given week,” he said. “And the fact that we only wind up with 20 complaints indicates that we’re doing well.”

Andrist said he does not believe results would be as drastic in a statewide audit.

Sydney Mook, Joe Bowen and Bonnie Meibers contributed to this story.